Informe provisional - Informe núm. 368, Junio 2013

1. 848. The Committee last examined this case at its March 2012 meeting, when it presented an interim report to the Governing Body [see 363rd Report, paras 1214–1358, approved by the Governing Body at its 312th Session (March 2012)].
2. 849. The International Organisation of Employers (IOE) subsequently sent new allegations and additional information in communications dated 20 February and 18 September 2012.
3. 850. The Government sent new observations in communications dated 15 October 2012 and 24 May 2013.
4. 851. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 852. In its previous examination of the case in March 2012, the Committee made the following recommendations on the matters still pending [see 363rd Report, para. 1358]:
   • (a) Regarding the abduction and maltreatment of the FEDECAMARAS leaders, Messrs Noel Álvarez, Luis Villegas, Ernesto Villamil and Ms Albis Muñoz (Employer member of the Governing Body of the ILO), the latter being wounded by three bullets, the Committee deplores the offences that were committed, emphasizes their seriousness and requests the Government to take all the steps within its power to arrest the other three persons involved in the abductions and wounding, and to keep it informed of developments in the investigations. The Committee notes the Government’s statement that a public hearing was scheduled for 20 October 2011 and expresses the hope that the persons guilty of these crimes will soon be convicted and sentenced in proportion to the seriousness of the offences in order that such incidents will not be repeated and requests the Government to keep it informed in this respect. At the same time, the Committee notes with concern the IOE’s statement in its additional information that Ms Albis Muñoz, employers’ leader and one of the victims of aggression, has asserted that neither of the suspects arrested (Mr Antonio José Silva Moyega and Mr Jason Manjares) were the instigators of the aggression, as well as the IOE’s reservations as to the idea that the motive of the aggression was car theft.
   • (b) Regarding the criminal investigation ordered by the Public Prosecutor’s Office into the public declarations by the President of FEDECAMARAS, Mr Noel Álvarez, the Committee wishes to state that, in the context described by the IOE, the declarations do not in its opinion appear to contain any criminal content and should not normally have given rise to a criminal investigation. However, so that it can reach its conclusions in full possession of the facts, the Committee requests the Government to send its observations on the allegation.
   • (c) Regarding the alleged attacks on FEDECAMARAS headquarters in 2007, the Committee had requested FEDECAMARAS to file an official complaint on the subject with the Public Prosecutor’s Office. The Committee reiterates that recommendation and indicates that if the organization has not done so by the Committee’s next meeting, it will not pursue its examination of this allegation any further; noting however that an environment of harassment and lack of confidence in the public authorities is not conducive to the proposed lodging of its official complaints.
   • (d) Regarding the alleged bomb attack on FEDECAMARAS headquarters on 24 February 2008, the Committee notes the Government’s statement that the persons charged, Mr Juan Crisóstomo Montoya González and Mrs Ivonne Gioconda Márquez Burgos, have confessed in full to the crimes of public intimidation and unlawful use of identity papers, that a preliminary public hearing was set for 4 November 2011 and that, as soon as a final ruling on the case was handed down, the Committee would be duly informed. The Committee emphasizes the importance that the guilty parties should be punished in proportion to the seriousness of the crimes committed and the employer organization compensated for the loss and damage on account of these illegal acts. The Committee is waiting to be informed of the sentence handed down.
   • (e) Observing the various acts of violence committed against FEDECAMARAS or its officials, the Committee again draws the attention of the Government to the fundamental principle that the rights of workers’ and employers’ organizations can be exercised only in a climate free of violence, intimidation and fear, as such situations of insecurity are incompatible with the requirements of Convention No. 87.
   • (f) Regarding the Committee’s recommendation that the Government restore the La Bureche farm to the employers’ leader, Mr Eduardo Gómez Sigala, and compensate him fully for all the damage caused by the authorities in occupying the farm, the Committee notes that there is a contradiction between the allegations and the Government’s judgment that the expropriated farm of employers’ leader Mr Eduardo Gómez Sigala was idle. Be that as it may, the Committee observes that the Government does not deny the IOE’s allegation that the farm is currently a military training centre (as opposed to the Government’s statement that the purpose of the land rescue procedure is to encourage the agricultural use of the Valle del Río) or the allegation that Mr Eduardo Gómez Sigala has not received any compensation. The Committee therefore once again calls on the Government to respond fully to the allegations, return the farm property without delay to the employers’ leader and compensate him fully for all losses sustained as a result of the intervention by the authorities in seizing his farm.
   • (g) The Committee requests the complainant organizations to send their comments on the information and observations presented by the Government concerning the expropriation of Agroisleña SA, Owen–Illinois and the Turbio steel plant.
   • (h) The Committee invites the complainants to provide their observations on the Government statement on the livestock farmer Mr Franklin Brito.
   • (i) Regarding the alleged confiscation (“rescue”, according to the Government) of the farms owned by the employers’ leaders, Mr Egildo Luján, Mr Vicente Brito, Mr Rafael Marcial Garmendia and Mr Manuel Cipriano Heredia, the Committee considers that it is impossible to discount the possibility of discrimination. The Committee requests the Government to ensure that they are granted fair compensation without delay and to initiate a frank dialogue with those affected and with FEDECAMARAS on the confiscations/rescues referred to and to keep it informed of developments. The Committee also requests the Government to send its observations on the attacks on the buildings owned by Mr Carlos Sequera Yépez, former President of FEDECAMARAS.
   • (j) Regarding the alleged lack of bipartite and tripartite social dialogue with FEDECAMARAS, the Committee notes with concern the IOE’s new allegations concerning the approval without any tripartite consultation of laws that affect the interests of employers and their organizations. The Committee regrets that the Government has not responded specifically to these allegations of the IOE and urges it to do so without delay. Moreover, observing that the serious shortcomings in social dialogue continue to exist, the Committee reiterates its earlier recommendation, as follows:
     • – deeply deploring that the Government has ignored its recommendations, the Committee urges the Government to establish a high-level joint national committee in the country with the assistance of the ILO, to examine each and every one of the allegations and issues in this case so that the problems can be solved through direct dialogue. The Committee trusts that the Government will not postpone the adoption of the necessary measures any further and urges the Government to keep it informed in this regard;
     • – the Committee expects that a forum for social dialogue will be established in accordance with the principles of the ILO, having a tripartite composition which duly respects the representativeness of workers’ and employers’ organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests it once again to convene the tripartite commission on minimum wages provided for in the Organic Labour Act;
     • – observing that there are still no structured bodies for tripartite social dialogue, the Committee emphasizes once more the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by detailed consultations with the most representative independent workers’ and employers’ organizations. The Committee once again requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subject to genuine, in-depth consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible;
     • – the Committee requests the Government to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in sectors other than food and agriculture, and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various sectors of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations;
     • – the Committee requests the Government to ensure that as part of its policy of inclusive dialogue (including within the Legislative Assembly), FEDECAMARAS is duly consulted in the course of any legislative debate that may affect employer interests, in a manner commensurate with its level of representativeness.
     • The Committee deeply deplores that the Government has once again ignored these recommendation despite the fact that the Committee has been insisting on them for years.
   • (k) Regarding the alleged discrimination by the authorities against FEDECAMARAS and the allegations of favouritism vis-à-vis parallel organizations close to the Government and lacking in independence, the Committee reiterates the conclusions, recommendations and principles contained in its previous examination of the case and requests the Government to reply in detail to the allegations concerning the financing of parallel organizations and of favouritism vis-à-vis EMPREVEN and the “social production companies” and the discrimination against private companies. Regarding the IOE’s new allegations concerning the sending of electronic mails between senior officials and parallel employers’ organizations, the Committee calls on the Government to verify without delay with the senior officials concerned whether or not they or their representatives sent the electronic mail attached to the IOE’s deposition.
   • (l) Regarding the Defence of Political Sovereignty and National Self-Determination Bill, the Committee calls on the Government to ensure respect for the abovementioned principle as regards international financial assistance to workers’ and employers’ organizations so that, if the Bill does indeed apply to them, to take the necessary measures without delay to amend the Bill (or the Act) so as to guarantee explicitly the rights of employers’ and workers’ organizations to receive international financial assistance without prior authorization from the authorities for activities related to the promotion and defence of the interests of their members.
   • (m) Regarding the complainant organization’s comments on the Central Planning Commission Act, the Committee had observed in its earlier examination of the case that the legislation establishes strong state intervention in the economy and national economic structure under the aegis of central planning in order to construct the Venezuelan socialist model and had requested the complainant organizations to provide information on the relationship between the allegations and the violation of Conventions Nos 87 and 98. The Committee reiterates this recommendation and indicates that if the organizations have not done so by the Committee’s next meeting, it will not pursue its examination of these allegations any further.
   • (n) The Committee requests the Government to send its observations in relation to the recent IOE communication dated 20 February 2012 alleging repeated failure to engage in tripartite consultations with respect to legislative matters.
   • (o) The Committee draws the attention of the Governing Body to the serious and urgent nature of this case.

B. Additional information and new allegations presented by the complainants

1. 853. In joint communications dated 22 February and 18 September 2012, the IOE and the Venezuelan Federation of Chambers and Associations of Commerce and Production (FEDECAMARAS), despite the keenness that FEDECAMARAS has demonstrated in recent months to promote genuine social dialogue and tripartite consultation in the Bolivarian Republic of Venezuela, as called for in Convention No. 144 ratified by Venezuela in 1983 and Recommendation No. 152, no such developments have taken place. In some cases the Government has merely convened at its own discretion specific private sectors other than FEDECAMARAS, which is widely recognized by the ILO as being the most representative employers’ organization in the country; in others, the consultation is a mere formality that does not allow time to reply, or else the views of the independent social partners consulted are simply ignored. On other occasions there has either been no consultation whatsoever or else it has been held just with a few hand-picked organizations that support the Government. The complainants observe that there have been further incidents have taken place in violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), ratified by the Bolivarian Republic of Venezuela in 1982, 1983 and 1944 respectively, and that these have had negative consequences for employers in general and for FEDECAMARAS in particular, as the most representative employers’ organization,.
2. 854. The complainants recall that, in paragraph 1292(i) of its Report No. 359 of March 2011, the Committee deeply deplored that the Venezuelan Government had ignored its earlier recommendations, in which it requested the Government:
   • – to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in the various sectors and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various branches of activity, the formulation of economic and social policy and the drafting of laws which affect the interests of the employers and their organizations;
   • – to ensure that, as part of its policy of inclusive dialogue (including within the Legislative Assembly), FEDECAMARAS is duly consulted in the course of any legislative debate that may affect employer’s interests, in a manner commensurate with its level of representativeness.
3. 855. However, according to the complainants, the Government continued adopting a series of measures in 2011 and 2012 which have had a major impact on private enterprise in the Bolivarian Republic of Venezuela, which violate ILO Conventions Nos 26, 87 and 144 in that they were implemented without undue consultation of the most representative employers’ organization, FEDECAMARAS, and which restrict the exercise of freedom of association and violate ILO standards concerning the approval of increases in minimum wages. The relevant legal texts are discussed below.

Security of Employment Decree

1. 856. In Official Gazette No. 39828 of 26 December 2011 and without holding proper consultations with the social partners for the eleventh year running, the Government of the Bolivarian Republic of Venezuela promulgated Security of Employment Decree No. 8732. Articles 2 and 3 of the decree stipulate that workers benefiting from special security of employment may not be dismissed, demoted or transferred without just cause having been duly certified in advance by the Labour Inspector of the jurisdiction concerned. Failure to observe this procedure automatically entitles workers to request reinstatement in their jobs and the payment of wages due. This special protection is accorded irrespective of accrued wages to: (i) workers on open-ended contracts as from the third month of employment; (ii) workers on fixed-term contracts up to the end of their contract; and (iii) workers under contract to carry out a specific job or task until the entire job or task – or that part for which they are responsible – has been completed. In other words, the new standard has extended the scope of employment security to all workers governed by the Organic Labour Act, whatever their wage. Article 6 of the Decree specifies that this protection does not apply to workers in management positions and in positions of trust or to temporary, casual or public-sector workers. The Decree came into effect upon its publication in the Official Gazette of 26 December 2011, based on a decision taken without any kind of consultation, even though in recent years FEDECAMARAS had drawn attention to the inappropriateness of employment security being extended by the Executive without consulting the social partners – which shows that there is no such things as genuine social dialogue in the Bolivarian Republic of Venezuela.

New Organic Labour and Workers Act

1. 857. The complainants allege that Official Gazette Special Issue No. 6076 of 7 May 2012 a new Organic Labour and Workers Act was promulgated in the form of a legislative decree that was issued by the President of the Republic under the Enabling Act adopted by the National Assembly on 17 December 2010, without due consultation of the most representative employers’ organizations and in violation of ILO Convention No. 144 (see below).
2. 858. In December 2011 the President of the Republic announced the creation of a Presidential Committee to prepare a draft reform of the Organic Labour Act. The members of the Committee were:
   • 1. Nicolás Maduro, People’s Minister of External Relations
   • 2. María Cristina Iglesias, People’s Minister of Labour
   • 3. Jorge Giordani, People’s Minister of Planning and Finance
   • 4. Wills Rangel, representative of the Bolivarian Socialist Federation of Urban, Rural and Seafaring Workers (CSBT), the recently established government-backed trade union of the state petroleum company
   • 5. Omar Mora, Magistrate, President of the Social Chamber of Appeals of the Supreme Court of Justice
   • 6. Francisco Torrealba, deputy of the National Assembly for the United Socialist Party of Venezuela (PSUV), the Government party, and Vice-President of the Railways Section of the CSBT
   • 7. Oswaldo Vera, deputy, PSUV President of the National Assembly’s Integrated Social Development Committee
   • 8. Braulio Álvarez, deputy, PSUV
   • 9. Juan Rafael Perdomo, Magistrate, Vice-President of the Social Chamber of Appeals of the Supreme Court of Justice
   • 10. Jesús Martínez, labour lawyer with connections to the government-inspired Bolivarian University
   • 11. Antonio Espinoza Prieto, lawyer, adviser to the PSUV
   • 12. Carlos Sainz Muñoz, lawyer, legal adviser to Oswaldo Vera, deputy, President of the National Assembly’s Committee on Social Affairs
   • 13. Carlos López, government sector trade unionists, Coordinator of the CSBT
   • 14. Orlando Castillo, government sector trade unionist for public service employees
   • 15. Carlos Escarrá (deceased) and his successor Cilia Flores, Public Prosecutor
   • 16. For the employer sector, Miguel Pérez Abad, President of FEDEINDUSTRIA (a government-biased parallel body previously denounced by FEDECAMARAS in Case No. 2254, who was appointed by the President of the Republic as a deputy member of the Council of State established by Presidential Decree No. 8937 (Official Gazette No. 39912 of 30 April 2012) and of the Higher Council of Labour established by Presidential Decree No. 9003 (Official Gazette No. 9003 of 22 May 2012) in pursuance of the Organic Labour and Workers Act.
3. 859. It is obvious from the list of members of the Presidential Committee that they are all part of the Executive, Legislative or Judiciary or are otherwise supporters of the Government. This is notably the case of the sole representative of the employer sector (Miguel Pérez Abad, President of the Venezuelan Federation of Craft, Micro, Small and Medium-sized Business Associations (FEDEINDUSTRIA) who, as a member of the Council of State and of the Higher Council of Labour, is a direct adviser to the Venezuelan Government on matters of State and on labour affairs. (Pérez Abad has issued press releases concerning his appointment.)
4. 860. Moreover, of the 18 members of the Higher Council of Labour 13 are members of the Presidential Committee, along with five public officials, three ministers and two vice-ministers of the People’s Ministry of Labour and Security, which shows that the Presidential Committee is very largely made up of government supporters, virtually the only sector consulted.
5. 861. Moreover, the Labour and Workers Act contained in the Presidential Decree was issued as an Organic Act in violation of article 203 of the Constitution, as it was not approved by the two-thirds majority of the National Assembly required for the adoption of an organic act; instead, it is based on an Enabling Act issued by the National Assembly in 2010 to empower the President to deal with specific issues arising exclusively from a natural disaster caused by that year’s heavy rains, but which he has used to legislate on any matter he deems fit.
6. 862. In other words, no proper consultation of the most representative segments of the employer sector was held on the new Organic Labour and Workers Act, in blatant violation of ILO Convention No. 144.
7. 863. FEDECAMARAS was neither convened nor at any time invited to express its opinion on the Act, and the text of the draft law was almost unknown when it was published in the Official Gazette. Before that the social media had only cited the views of members of the Presidential Committee and government spokespersons on certain broad aspects of the law. The text was submitted to the President towards the end of April by the Committee that had been hand-picked; it was then approved by him at a public event on 30 April and promulgated on 7 May.
8. 864. The Government informed the media that it had received and examined 19,000 proposals, which one must assume reached the Presidential Committee from some other source without any of them being officially registered. But even if it is true that there were any number of proposals, that is no substitute for genuine social dialogue as understood by the ILO. The kind of social dialogue alluded to in Convention No. 144 cannot be selective; it cannot be simply the unilateral expression of opinions or proposals by non-representative social actors or sectors linked to the Government and it cannot bypass the compulsory consultation of the most representative employers’ organizations in the country, that is, FEDECAMARAS.
9. 865. FEDECAMARAS naturally informed the media that the law had been passed without any social dialogue and that the Federation would apply to the ILO to denounce the violation of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and this was in fact recognized by Oswaldo Vera, deputy, member of the Presidential Committee and PSUV President of the Standing Committee on Social Development of the National Assembly.
10. 866. The worker sector also protested against the lack of social dialogue on the proposed law and, on 26 March 2012, the FADESS trade union appealed to the Supreme Court of Justice for protection under the Constitution in a bid to prevent the legislative reform being issued under an Enabling Act. It requested specifically in its appeal that the Court submit the proposed law to the National Assembly for more extensive discussion. Moreover, a number of trade unions (FADESS, CTV and others) organized a march on 1 May to protest against the passing of the new Act without any consultation.
11. 867. This lack of social dialogue is nothing new for the Venezuelan Government, which for over 10 years has failed to comply with its obligation to hold tripartite discussions on labour affairs. In the last two years particularly, the President has used the Enabling Act to appropriate the power of the Legislature to issue unilaterally a whole set of legislative decrees on all kinds of subject, as shall be seen below.
12. 868. In the Bolivarian Republic of Venezuela, the Labour Act is considered to be the country’s most important social contract after the Constitution. Consequently, a legislative reform of this nature needs both a consensus of the social partners and wide support from the community, which was not the case as the text of the new law was not known or publicized prior to its official promulgation.
13. 869. Moreover, the new Act imposes a series of additional economic and political burdens on the private sector:
    • (1) For employers the law is highly punitive and discriminatory, since it provides for six to 15 months’ prison or detention for any employer who refuses to re-employ a worker, on grounds of non-compliance with administrative orders or non-payment of fines (the sanctions apply to management board members but not to the administrators of state enterprises). Moreover, natural persons in their capacity as employers are jointly and severally responsible with the shareholders for compliance with their obligations vis-à-vis the workers and are liable to have their assets seized.
    • Another discriminatory aspect of the new Act is that the Government assumes none of the prior debts and liabilities of the companies it expropriates, which have to be met by the former shareholders and are deducted from the price paid.
    • (2) The Act provides for greater state intervention in labour relations, stipulating as it does that the principal objective of the social process of labour is to overcome the “capitalist form of exploitation” (i.e., production) and that the workers alone are “creators of socially produced wealth”, thereby denying capital any value as a generator of employment.
    • (3) The new Act imposes new restrictions and burdens on the employer sector that are liable to result in restrictions on investment and production by Venezuelan enterprises. For example, it makes social benefits (seniority) retroactive, the implications of which are highly negative in an inflationary context; it provides for a shorter working day; it complicates the procedure for dismissing workers and imposes penal sanctions on employers who refuse to re-employ them; it institutes employment security as a legal standard (this also applies for two years in the case of the parents of newborn children and of adoptive parents of children under the age of three.
    • (4) It institutes the concept of Workers’ Councils alongside trade unions, in some cases with similar powers, under regulations issued subsequently in a special law.
    • (5) The powers of trade union organizations include supervising and monitoring the enterprise’s costs and profits so as to ensure that the prices paid for its goods and services are fair.
    • (6) It establishes a Register of Workers’ and Employers’ Organizations within the People’s Ministry of Labour and Social Security through which it regulates the content of their statutes and the appointment and functioning of their executive bodies, which must conform to the guidelines set out in the Register. Each year the organizations must provide the Register with a complete list of affiliated bodies, along with any other information required. Failure to register limits the legitimacy of employers’ or workers’ organization to engage in collective bargaining, which means that they lose all their autonomy and severely undermines their freedom of association.
14. 870. The complainants emphasize that the Act’s legal provisions clearly curtail the employers’ exercise of the economic freedom and freedom of association that are provided for in both the Constitution and ILO Convention No. 87 and make it increasingly difficult for enterprises to continue to operate in the country, especially the small and medium-sized companies that account for 50 per cent of all enterprises.
15. 871. The undermining of freedom of association by the Government has already had very serious repercussions on employers in the Bolivarian Republic of Venezuela, and the new Labour Act will further aggravated the situation. In recent years the Government’s economic policies have visibly caused a decline in the number of companies operating in the country. In 2002, the Bolivarian Republic of Venezuela’s official National Statistical Institute (INE) reported that there were 611,803 active employers. For the month of January 2012 the INE’s figures showed 425,404 employers, a drop of 180,013 since 2002. By May 2012 some 217,204 private employers had closed down since 2002, and their number continues to increase steadily. More than 800,000 people could have found work in the enterprises that today are closed. An article published by the former President of FEDECAMARAS Zulia, Néstor Borjas, comparing the official figures for employers and employees between 2002 and 2012 confirms that the number of employers fell by 35.5 per cent during the period.

Approval of new legislative decrees on economic and social affairs issued by the President of the Republic under the Enabling Act adopted by the National Assembly

1. 872. The complainants allege that, during the 18 months for which the National Assembly delegated the power to legislate to the President of the Republic under article 3 of the Enabling Act it passed on 17 December 2010, the President issued 38 legislative decrees between January 2011 and May 2012. On 15 June 2012, just two days before his delegated powers came to an end on 17 June 2012 and when the country was busy preparing the 7 October presidential elections, the President issued another 14 legislative decrees that had major implications for the economy – a total of 52 decrees issued during the period covered by the Enabling Act.
2. 873. None of the most representative employers’ organizations were consulted on these 52 decrees when they were promulgated by presidential decree, which means that in each case the Venezuelan Government violated the provisions of ILO Convention No. 144.
3. 874. There was none of the “people’s participation” and “open consultation” on legislative issues that is called for in the preamble and in articles 187.4 and 211 of the Constitution, which do not exclude from its provisions legislative decrees issued by the President in exercise of legislative powers delegated to him by the National Assembly.
4. 875. In his use of the Enabling Act, the President of the Republic appropriated the power to legislate at his sole discretion on a whole array of issues that were not delegated to him under an Enabling Act that was adopted solely to attend to situations arising from the heavy rains in 2010. Consequently, because they were drafted without any consultation or participation of the people and because they went beyond the matters delegated under the Enabling Act, every one of the decrees constituted a violation of the Constitution and non compliance with ILO Convention No. 144.

Organic Act on Community Management of Skills, Services and Other Attributes, Act to Promote and Regulate New Forms of Association with the State, and Legislative Decree to Determine the Fair Price of Real Estate

1. 876. Among the 14 legislative decrees issued by the President on 15 June 2012, two were especially significant as they modify extensively the functioning of the economic actors and employers in the country: the Organic Act for Community Management of Skills, Services and Other Attributes (Legislative Decree No. 9043, Official Gazette Special No. 6079 of 15 June 2012) and the Act to Promote and Regulate New Forms of Association with the State (Legislative Decree No. 9052, Official Gazette No. 39945 of 15 June 2012), a private and community initiative for the development of the national economy. A third legislative decree, the Legislative Decree to Determine the Fair Price of Real Estate for Housing Purposes in Cases of Emergency (Legislative Decree No. 9050, Official Gazette No. 39945 of 15 June 2012), establishes the “fair price” that the Government sets unilaterally in the event of emergency expropriations.
2. 877. The first two of these legislative decrees lay down the rules and regulations for associations between the State and organized communities or private entrepreneurial entities. The decree offers a number of advantages whose objective is obviously to replace traditional private enterprise by new forms of state associations that follow government guidelines, since it is a sine qua non that such associations “promote and extend the construction of the socialist model” – to the exclusion of any form of enterprise that is not party to that particular political model. This goes further than the definition of the Government found in the Constitution, where it is described as democratic, participative, elective, decentralized, alternating, responsible, pluralist and revocable (article 6).
3. 878. These legislative decrees provide for the almost total centralization and control of economic activity by the State, since they do not contemplate the possibility of harmonious development in collaboration with private enterprise, as called for in the Constitution (article 299), but rather that the State should determine how the country’s economy is run in accordance with the guidelines set in the Socialist Plan of the Nation and in the new legislative decrees promoting the development of enterprises associated with the State. It is the State that plays the leading role as an economic agent in determining how the economy of the country is to function, either unilaterally or in association with enterprises or communities that are entitled to certain advantages that are designed to make the system attractive. These privileges that entrepreneurial entities gain from their association with the State include:
   • – tax exemptions;
   • – access to state distribution and marketing networks;
   • – access to direct state purchases (without bidding); and
   • – access to special loans and funds under preferential terms.
4. 879. These privileges obviously give the associations an unfair advantage in their economic dealings. Contrary to the Constitution, entrepreneurs that do not bow to the Government and to socialism are excluded, which means that independent entrepreneurial systems will eventually disappear. Both state enterprises and their associated entities should compete on equal terms with the other economic agents. The new system thus discriminates against employers that do not conform to the socialist model or set up entrepreneurial associations in which the State in any case takes all the most important decisions, According to the Act to Promote and Regulate New Forms of Association with the State, even if a private entity enters into an association with the State it still has no margin for manoeuvre in its economic activity since the decision-taker in the day-to-day running of the associations is the State, either because it is the majority shareholder or, if not, because under the law on these mixed enterprises (in which it holds a minimum of 40 per cent of the shares) the State has power of decision in all strategic matters (a very general concept).
5. 880. In the case of the last two decrees especially, under which the State can set up associations with community organizations and private entities committed to socialism, the President of the Republic has the power of an autocrat in deciding how the economy of the country is to function, without consulting the Venezuelan people either individually or as organized social units; it thereby violates the constitutional requirement of “democratic participation” and “open consultation” specifically where the determination of the country’s socio-economic system and the harmonious development of the national economy are concerned (article 299) and curtails the constitutional right to economic freedom (article 112). Since, quite apart from the absence of consultation, these decrees severely restrict the exercise of freedom of association, all this points to the Government’s blatant violation of ILO Conventions Nos 87 and 144.
6. 881. The third legislative decree referred to as being significant among the 14 decrees issued on 15 June 2012 is the Legislative Decree to Determine the Fair Price of Real Estate for Housing Purposes in Cases of Emergency, according to which any enterprise and even any individual citizen expropriated by the State for housing purposes is paid only the “fair price” calculated according to the formula set out in the decree. Under the new system the State has decided that the fair price will be based on the most recent purchase price of the building indicated in the registered document of ownership, updated according to the following simple arithmetic formulas:
   • (1) variation in the national consumer price index;
   • (2) nominal interest rate on deposits of over 90 days; and
   • (3) nominal weighted average lending rate.

     Example of the impact of the 2011–12 formula for the month of May

     • Index title	Value
       National consumer price index	22.60
       Nominal interest rate on deposits	16.75
       Nominal weighted average lending rate	14.50
       Indexation formula	(22.6+16.75+14.50)/3
       Total	17.95

       >
7. 882. Moreover, the decree states explicitly that the fair price excludes:
   • (1) the market price or value;
   • (2) any influence or impact deriving from public or private investment in the area; and
   • (3) expected rental value from uses scheduled under territorial or urban development plans.
8. 883. The decree is designed to minimize as far as possible the amount payable to the persons expropriated, who suffer not only from having to leave the building but also from being unable to acquire a building of similar value with the amount paid in compensation, which does not take the market value into account. Refusing to consider the market value means ignoring the monetary value that a society operating under a system of supply and demand assigns to a product at any given moment. The new system does away with the “negotiation” of a fair price and replaces it by compulsory acquisition of the asset; even the possibility that formerly existed of appealing to the Supreme Court of Justice to set a fair price when the parties concerned cannot agree no longer exists. The decree’s inclusion of this provision means that the price paid for the expropriated building is determined exclusively by the expropriating party. Imposing the price through administrative channels (which may apply for any building at all) violates of the right to private property, is tantamount to confiscation and is therefore unconstitutional. if the indexing does not take into account the building’s potential rental value, enterprises will tend not to go ahead with expansion projects that involve its acquisition, as the long-term return on the project is directly linked to the building in which it is to take place. The new legal arrangement thus also violates ILO Conventions Nos 87 and 144, since the most representative employers’ organization in the Bolivarian Republic of Venezuela, FEDECAMARAS, was not consulted and since it severely restricts the exercise of economic freedom and freedom of association.
9. 884. Of course, it is impossible to say at this stage what repercussions the new legislative decrees issued by the President of the Republic – of which only the three decrees liable to have the greatest impact on the country’s employer sector have been analysed here – will have on the normal operations of the Bolivarian Republic of Venezuela’s employers.

New Presidential decree on minimum wage increases

1. 885. The complainant organizations allege that Presidential Decree No. 8920 of 24 April 2012 approving the increase in minimum wages for 2012 was promulgated on 27 April, once again without any consultation of the most representative employers’ organizations.
2. 886. In 2012, without convening the National Tripartite Committee, as required explicitly by articles 167, 168 and 169 of Organic Labour Act that was still in force at the time the increase in the minimum wage for the year was made official, the People’s Ministry Of Labour and Social Security sent FEDECAMARAS communication No. 1179 dated 16 March and received by the Federation on 20 March, giving it just 15 days to express its views on the fixing of the mandatory minimum wage. The communication was an attempt to claim the existence of social dialogue in the setting of the minimum wage for 2012, whereas in fact it violated the basic rights and guarantees, the freedom of association and the right to a legal defence of both physical and to persons (articles 3 and 4), as well as the very structure of a criminal code based on subjective responsibility. The law also establishes the principle of the joint and several responsibility of enterprises (article 16), likewise on the basis of their objective criminal responsibility, and thus violates their right to freedom and to all constitutional guarantees. In addition, the decree establishes the principle of the enterprises’ objective criminal responsibility for acts attributable to their dependents, which is a violation of the freedom of the individual and of associations as well as of their individual rights and guarantees. As further proof that the decree violates all the rights and guarantees of the individual and of enterprises, article 22 claims competency to conduct criminal investigations into administrative personnel not attached to the Judiciary. Yet according to the Enabling Act any issue as crucial as the increase in minimum wages has to be properly discussed in the Tripartite Committee.
3. 887. As FEDECAMARAS has repeatedly noted in complaints presented to the ILO for more than ten years, the State of Venezuela has failed to comply with this legal requirement of the Tripartite Committee regarding the fixing of the minimum wage.
4. 888. In the new Organic Act on Labour and Workers the Tripartite Committee is now not mentioned at all. Regarding the annual increase in the minimum wage the Act merely states (article 129): “After due consideration, the Executive shall each year fix the minimum wage by decree. In doing so it shall conduct a broad consultation of the views of the various social organizations and socio-economic institutions”. As can be seen, the new Act omits any requirement that the most representative employers’ and workers’ organizations should be consulted, referring merely to the “broad consultation” of various organizations.
5. 889. The preambular paragraphs of Presidential Decree No. 8920 of 24 April 2012 concerning the minimum wage increase for 2012 (Official Gazette No. 39908 of 27 April 2012) states explicitly that “the Bolivarian Republic of Venezuela has endorsed and ratified ILO Conventions Nos 26, 95 and 100 concerning minimum wage fixing, protection of wages and equal remuneration for men and women for work of equal value, respectively”.
6. 890. Notwithstanding the fact that all the ILO Conventions cited as a basis for the presidential decree stipulate that the most representative employers’ organizations must be consulted, the Government of the Bolivarian Republic of Venezuela continues to ignore this provision as it relates to minimum wage fixing, in so far as there is no genuine social dialogue on the subject but, by way of lip service to this requirement, a mere communication giving very little time for a reply which does not conform to national and international standards and is in blatant violation of ILO Conventions Nos 26 and 144.

Costs and Fair Prices Act

1. 891. The complainants allege that during 2012 the Government continued to adopt price control measures under the Costs and Fair Prices Act (Presidential Decree) of 18 July 2011, which was again issued under the Enabling Act without due consultation of the social partners. This was the subject of the amplified complaint presented to the Office of the ILO Director-General on 20 February 2012.
2. 892. According to article 1 of the Act it is designed to establish regulations and administrative and monitoring machinery for maintaining stable prices. For this purpose it creates a National Integrated Cost/Price System whose purpose, among other things, is to “identify economic agents that set excessively high prices in terms of the services they offer or the products they sell”. Given the Bolivarian Republic of Venezuela’s insecure investment climate and its galloping inflation caused by uncontrolled public expenditure, this would suggest that it is to become a police State which, instead of punishing the real irregularities that occur because of the speculative practices of certain economic agents, will carry out ex ante investigations into the financial situation of all Venezuelan entrepreneurs in order to fix the prices of their products.
3. 893. A new bureaucratic institution is to be set up that will attempt to establish a system for supervising the whole production, marketing and distribution chain of every kind of goods or services. And a new National Price Register of Goods and Services is to be added to the large number that enterprises already have to cope with, under the responsibility of the National Cost/Price Department. Registration, which according to article 10 is to be compulsory, will be required for certain administrative formalities vis-à-vis the State.
4. 894. The Department established under the Act will be able to fix prices that it considers “fair”, based on information supplied by enterprises and its own cost structure review. Price setting depends on so many factors that this process will end up being quite arbitrary, because in practice it is impossible to assess the cost structure of all Venezuelan enterprises and all available products fast enough to set their price causing a negative impact on the availability of goods for the public. The cost structure of any product changes constantly and can be affected by a variety of factors, and so they have to be constantly revised. In most cases bodies that are set up to regulate prices are highly specialized in each sector they are concerned with and each regulates a specific group of products and services. This calls for a very large staff. But the new law is not concerned with regulating a basket of products; the same procedure may be applied to any product, and this will entail a long-drawn-out process that will encourage the growth of discretionary powers and generate a great deal of legal uncertainty for producers and consumers alike. In other words, the prime object of the law, which is to protect the population, will prove to be unattainable in practice; faced with such an uncertain situation enterprises will be inclined to reduce their output, and this which in turn will cause shortages of regulated products and ultimately penalize the population and, further down the line, of the enterprises’ workers whose jobs will thus be threatened.
5. 895. Finally, the Act renders the protection of private property subject to national security and sovereignty and to public utility and the general and social interest. Article 46, for instance, provides for enterprises to be sanctioned by temporary occupation, a penalty that already exists under the Defence of Persons in Access to Goods and Services Act (INDEPABIS).
6. 896. It is clear from the above that the whole set of regulations in the Costs and Fair Prices Act, which has the rank, value and force of law, places severe restrictions on the right of citizens to engage in their chosen economic activity, as provided for in article 112 of the Constitution, and will steadily whittle away free enterprise, entrepreneurship and the constitutional rights and guarantees of the Venezuelan people as a whole. In any case, as with all the other legislative initiatives referred to here as having implications for the activity of employers, the promulgation of the Act should first have complied with the constitutional, legal and international requirement of consultation or tripartite dialogue.
7. 897. Since February 2012 a series of products saw their maximum price regulated first in their “regular” form and then in their “premium” form, regardless of the fact that some of them come in anything from 100 to 300 different versions.
8. 898. Although the companies’ manufacturing the goods were asked for financial details, the maximum prices set by SUNDECOP, the National Costs and Prices Department’s regulatory body, were based on the unit cost without any allowance for other costs such as advertising, taxation, etc. Once prices have been set, companies can submit observations and ask for the prices to be revised (see Costs and Just Prices Act in Official Gazette No. 39715 of 18 July 2011, the Regulations made under Presidential Decree No. 8563 in Official Gazette No. 39802 of 17 November 2011, and SUNDECOP’s Ruling No. 007 in Official Gazette No. 39805 of 22 November 2011).
9. 899. Obviously, the Government’s failure to consult the most representative employers’ organizations not only before promulgating the Act but also before its implementation (when not even the enterprises affected by the measure were consulted on the maximum prices for their products) eventually had repercussions impact on production and in many cases resulted in shortages, as has happened with such basic products as milk, meat, oil, corn flour, etc.
10. 900. On 7 March 2012 the National Commerce and Services Council (CONSECOMERCIO), a trade association affiliated to FEDECAMARAS, applied to have the Costs and Just Prices Act repealed on the grounds that it violated the economic freedom and free enterprise of the employer sector as provided for in the Constitution. The appeal is currently before the Supreme Court of Justice.

Penal Law on the Environment

1. 901. This law, which was approved by the National Assembly on 16 December 2011 (likewise without the employer sector being consulted) establishes the concept of objective criminal responsibility of both physical and juridical persons (articles 3 and 4), in violation of the minimum rights and guarantees of persons, of individual freedom and the right to a judicial defence in a court of law and of the very structure of criminal law, founded as it is on the notion of subjective responsibility. Moreover, again on the basis of objective criminal responsibility and again in violation of freedom and of all constitutional guarantees, the law provides for the joint and several responsibility of enterprises (article 16). It also declares that enterprises are objectively responsibility under criminal law for all the actions of their dependents, which is a violation of the right to individual freedom and freedom of association and of the rights and guarantees of all persons and associations. Yet another demonstration of the fact that the law violates the rights and guarantees of individuals and of enterprises is article 22, which empowers administrative officials who are not members of the Judiciary to conduct criminal investigations.

Attempt to remove FEDECAMARAS as the employers’ representative in the Bolivarian Republic of Venezuela’s delegation to the 101th Session of the International Labour Conference

1. 902. In deciding on the composition of the Bolivarian Republic of Venezuela’s employers’ delegation to the 101th Session of the International Labour Conference in Geneva, Switzerland, from 30 May to 15 June 2012, the People’s Ministry of Labour and Social Security attempted to replace FEDECAMARAS as the leader of the delegation. By communication No. 34/2012 dated 4 May 2012, FEDECAMARAS was invited to a meeting at the Ministry on 8 May, along with other employers’ organizations, to pick the delegate and technical adviser(s) who would attend the annual session of the ILO Conference.
2. 903. At the meeting, after the Ministry had received an application to be designated most representative employers’ organization in a communication from FEDECAMARAS dated 24 April 2012, some other employers’ organizations announced that they too had submitted their own application and rejected the proposal that they be represented by FEDECAMARAS. This position was adopted by the Bolivarian Council of Manufacturers, Enterprises and Micro-enterprises (COBOIEM), which proposed that the employers’ delegate be Fanny Suárez of FEDEINDUSTRIA, who in turn proposed a list of technical advisers that included Miguel Valderrama, FEDEINDUSTRIA’s Vice-President. During the meeting, and without any formal communication, the representative of Entrepreneurs for Venezuela (EMPREVEN) proposed that the delegation be led by its own representative, Keyla de la Rosa. Subsequently, at the invitation of the representative from the Ministry and after a series of discussions at which the representatives of the Ministry and of FEDECAMARAS were not present, the representatives of the aforementioned minority employers’ organizations and of the National Confederation of Agricultural and Livestock Workers (CONFAGAN), all of whom were present at the meeting, stated that they had reached agreement on the designation of the delegate and technical advisers and withdrew their earlier applications. CONFAGAN proposed that the employer delegate be Miguel Valderrama, Vice-President of FEDEINDUSTRIA; his proposal was seconded by the other organizations apart from FEDECAMARAS, as noted in the minutes of the meeting (as if, added together, the other employers’ organizations in the country could claim majority representation). The said organizations also proposed their own representatives as technical advisers to the Conference, separately from those of FEDECAMARAS.
3. 904. After this proposal had been made by the parallel organizations and at the request of the Ministry, which FEDECAMARAS challenged in the ILO as not being representative, FEDECAMARAS placed on record, at the meeting on 8 May 2012 and in a communication from its President to the Ministry dated 9 May 2012, that the Federation refused to accept that a member of minority employers’ organization should lead the delegation and accordingly confirmed the designation of its delegation for the posts of employer delegate and technical advisers as per its communication to the Ministry dated 24 April 2012, insisting that they could not be replaced by representatives of organizations which were not more representative and which could therefore only attend the Conference as observers.
4. 905. During the 101st Session (2012) of the International Labour Conference FEDECAMARAS presented a complaint to the Credentials Committee because, even though the candidate proposed by the other organizations eventually declined the leadership of the delegation which was therefore undertaken by FEDECAMARAS, five technical advisers, four special guests and 11 other persons representing the parallel organizations also attended the Conference, that is, 20 people who were not members of FEDECAMARAS, the most representative employers’ organization in the Bolivarian Republic of Venezuela. Eventually, the Ministry included five technical advisers and a special guest in the delegation in addition to the leader.
5. 906. In the case of the Bolivarian Republic of Venezuela’s employer delegation to the 101st Session of the Conference, the Credentials Committee, as on previous occasions when an attempt has been made to remove the Federation from the delegation or reduce its participation, decided in favour of FEDECAMARAS as the country’s most representative organization.
6. 907. The membership of the Bolivarian Republic of Venezuela’s employer delegation has in fact been discussed again and again in the ILO and for the past 68 years there has never been any doubt about the Federation being the most representative organization in the country’s employer sector. FEDECAMARAS covers every branch of Venezuela’s 13 macroeconomic sectors: agriculture, banking, construction, energy, fishing, industry, mining, insurance, social media, telecommunications, trade, tourism and transport (see article 31 of the Federation’s statutes). It also has a regional representation in every state in the country through with hundreds of affiliated Chambers, as has been clearly demonstrated to the Conference’s Credentials Committee again and again. No other employers’ organization in the country has been able to claim any comparable representativity and, in its third report to the100th Session of the Conference in 2011, the Conference Committee stated that the Venezuelan Government had not demonstrated to the Conference, on the basis of objective and verifiable criteria, the representativeness of any organization other than FEDECAMARAS, even offering the Government technical assistance in defining the relevant criteria. Similarly, in a decision handed down at the 17th American Regional Meeting of the ILO on 17 December 2010, the Credentials Committee stated that the Government’s application of the participatory democracy principle did not correspond to criteria for consultation drawn from principles established in the ILO and ruled that, that being so, the presence was required of both the employers’ and the workers’ organizations with the greatest representativeness.
7. 908. On several occasions the Ministry has maintained that a delegation can comprise more than one organization, but for that to happen the other organizations have to prove that they are as representative as they claim if they are to be recognized by the ILO as being among the most representative. This kind of mixed delegation can only be justified when more than one organization can demonstrate fully to the ILO that it is equally representative, and this is not the case in the Bolivarian Republic of Venezuela where the representativeness of the other organizations, even when all added together, is in no way equivalent or similar to that of FEDECAMARAS which, as already mentioned, covers all the activities of the Venezuelan economy, has regional organizations in every state in the country and has hundreds of Chambers directly or indirectly affiliated to it.
8. 909. The facts described above illustrate clearly the Venezuelan Government’s intention to restrict FEDECAMARAS exercise of its trade union rights and freedom of association at the annual Sessions of the ILO Conference, in violation of the Convention No. 87.
9. 910. All this points yet again to the total lack of social dialogue and restrictions on freedom of association whereby the Venezuelan Government has violated ILO Conventions Nos 26, 87 and 144. In doing so threatens the very existence of independent employers’ organizations, especially that of FEDECAMARAS as the country’s most representative employers’ organization, which was not consulted prior to the adoption of any of the government measures referred to above, and this has had serious repercussions not just for the employer sector but for all Venezuelan workers. The issues raised here therefore call for the ILO’s immediate attention.
10. 911. Finally, the complainant organizations request the Committee to urge the Government of the Bolivarian Republic of Venezuela to hold tripartite consultations to decide on the dates of the planned High-level Mission.

C. The Government’s reply

1. 912. In its communication dated 15 October 2012, the Government states that it has already responded in detail to many of the points that the complainants are raising once again and that it confirms every one of its previous replies to the ILO’s supervisory body. Its communication contains a detailed summary of all that the Government can say on the subject; in the interests of brevity, it therefore presents its partial observations, while reserving the right to continue responding to each of the points separately.
2. 913. The Government begins with the following statement:
   • (a) This case is linked to the High-level Mission that was agreed upon in March 2011 and whose visit to the country has been held up for reasons outside the Government’s control, as noted in information documents submitted to the 312th (November 2011), 313rd (March 2012) and 316th (November 2012) Sessions of the Governing Body. Specifically, the IOE took advantage of this complaint at the Governing Body Session in November 2010 to request the application of article 26 against the Government of the Bolivarian Republic of Venezuela as a matter of urgency. At the Governing Body Session in February 2011 the Government agreed that a High-level Tripartite Mission could visit the country to verify the points that were still pending with regard to Case No. 2254. However, although the mission was approved 18 months ago it has twice been postponed for reasons outside the Government’s control. Abiding strictly by the Governing Body’s decision, the Government has maintained contact with the Office, collaborated fully on the case, made itself constantly available, set precise dates, presented a timetable for the visit, made logistical arrangements, etc. Despite the Governing Body’s decision and the Government’s willingness, however, the mission has twice been postponed. On both occasions the Government has respectfully accepted the postponement.
   • (b) With regard to the allegations in the case concerning the cattle-breeder Franklin Brito, the Agroisleña SA company, Owen – Illinois and the Turbio steelworks, the Government recalls that in its previous examination of the case the Committee requested the complainants to send comments on the information and statements sent by the Government on the subject. It therefore explicitly requests that, since the Committee has not received those comments, it state unequivocally that it does not intend to pursue its examination of the allegations and that it has concluded its examination of the matters at hand. The Government makes this request so that the Committee on Freedom of Association can maintain the uniformity, consistency and transparency of its consideration of all the cases that come before it, as it did in the face of the lack of information from the complainant in Cases Nos 2674 (paras 1160 and 1165) and 2727 (paras 1179 and 1190(d)) in its 360th Report (June 2011).
   • (c) The Government once again draws the Committee on Freedom of Association’s attention to the fact that sufficient grounds do not exist for an objective and impartial study of the allegations, and that vague and imprecise accusation cannot be admitted when, instead of being conducive to the resolution of disputes between the parties and of conforming to the Committee’s fundamental purpose, they are responsible for delays in procedure and give rise to unfounded rulings against the Government.
   • (d) Finally, the Government requests the Committee to review carefully the extension of the allegations that has been admitted as part of the joint IOE and FEDECAMARAS complaint, since they refer to matters to which the Government has sufficiently responded and are therefore not an extension but a repetition of their allegations.
3. 914. Regarding the abduction and maltreatment of FEDECAMARAS leaders Noel Álvarez, Luis Villegas, Ernesto Villamil and Albis Muñoz, the Government states that it has all ready replied extensively on this matter and has taken appropriate action, as stated in paragraphs 1257–1263 of the Committee’s 359th Report (March 2011) and paragraph 1304 of 363th Report (March 2012). It has supplied the same information and details to the Committee of Experts on the Application of Conventions and Recommendations in its communication No. 340/2010 of 1 December 2010, which has been duly registered by the ILO’s Department of Standards and was referred to by the Committee of Experts in connection with Convention No. 87 in Report III (Part IA) to the Conference in 2011 [page 195].
4. 915. In paragraph 1328 of its 363rd Report (March 2012) the Committee expresses “its grave concern that according to the allegations the suspects have not been identified by Ms Albis Muñoz as being responsible for the crime and that the charges do not include attempted homicide and the wounding of the employers leaders”. The Government has already stated with regard to this unfortunate incident, which the Government condemned from the outset, that it was originally presumed that five perpetrators were involved and that details had been supplied on each one. That being so, there is a major contradiction on the part of the Committee, since on the one hand it says that the two persons were not recognized by Ms Muñoz but then it goes on to express concern that they were not charged with attempted murder and causing her bodily harm.
5. 916. Such a contradictory analysis is surprising. In the first place, although Ms Muñoz did not recognize the facts, the Office of the Public Prosecutor considered that the investigation had provided sufficient evidence to charge the persons accused of robbing her. When the Committee makes the statement referred to, is it contesting the fact that the persons charged committed the theft? Does it have any evidence that some other persons were responsible for the incident?
6. 917. Moreover, the Committee has once again acted outside its mandate, since it is not competent in criminal matters and cannot tell a Government whether or not a person should face criminal charges following an investigation, which is strictly a matter for the country’s judiciary. It would be interesting to hear why the Committee, when it expresses doubts as to the authorship of the crime without any grounds for doing so, is convinced it knows what charges should be brought against the persons in custody. Ought the Committee not explain its grounds for such a contradictory statement?
7. 918. It is worth repeating what the Government has already stated, namely, that the Committee has no competence in criminal matters and has once again gone beyond its mandate by making such false statements, as if its members were judges, and, even worse, by issuing a ruling without knowing anything about the judicial proceedings.
8. 919. The Government appeals to the Committee on Freedom of Association to stop exceeding its mandate, to stop passing judgement on matters it knows nothing about and, above all, to stop commenting on penal procedures being conducted by a country’s own institutions. The Bolivarian Republic of Venezuela’s judicial system will charge the people involved in the incident with whatever crimes are appropriate, depending on the evidence that comes to light in the course of the proceedings.
9. 920. Notwithstanding the above, and in order once again to clarify the circumstances, the Government requested information from the Public Prosecutor, who replied that, regarding the case in which Antonio José Silva Moyega and Jaror Manjares have been charged with a criminal offence, the 11th Court of First Instance of the Criminal Judicial Circuit of Metropolitan Caracas set a public hearing for 22 October 2012. In the course of the investigation, three other persons were presumed to have been implicated in the incident, but the Office of the Public Prosecutor has stated that no evidence has so far come to light allowing their involvement to be established beyond doubt. Moreover, one of the persons concerned was killed in a confrontation with the police in 2010.
10. 921. With regard to the investigation ordered into the public statements made by Noel Álvarez, the Public Prosecutor’s Office recently stated that the investigation was in its preparatory stage and that it was taking the necessary steps to clarify the incident and determine who was responsible. The Government repeats that it is for the relevant official bodies to clarify the situation, hand down their rulings and determine who, if anyone, was responsible for the incident. The matter does not come within the mandate of the Committee on Freedom of Association.
11. 922. Regarding the events that allegedly occurred at FEDECAMARAS headquarters in 2007, the Government once again finds itself obliged to reject the Committee’s subjective appreciation of the circumstances as being irresponsible and, by referring to an “environment of harassment and lack of confidence in the public authorities [that] is not conducive to the proposed lodging of ... official complaints”, of being disrespectful. The Committee’s partial and subjective appreciation, which the Government rejects categorically, calls into question the very institutions, authorities and Judiciary of the Bolivarian Republic of Venezuela. The leaders of FEDECAMARAS systematically use the media as part of the political strategy which the Federation’s executive body pursues as an opposition faction. The Government challenges the Committee to produce the slightest evidence of any incident at FEDECAMARAS’ headquarters in 2007 that the Venezuelan people are unaware of. The Government states clearly and emphatically that it is not for the Committee to cast doubt on the proceedings of the Bolivarian Republic of Venezuela’s judicial authorities, which are objective, transparent, entirely lawful and devoid of the subjectivity and partisan interests demonstrated by the Committee. The Government insists that the Committee show proper respect and objectivity in dealing with the country’s institutions and public authorities and trusts that there will be no repetition of its disrespectful, irresponsible and subjective proceedings and judgements. Furthermore, the Government wishes to remind the Committee that, in its previous examination of the case, it asked FEDECAMARAS to lodge an official complaint with the Public Prosecutor’s Office and Committee informed it that, if the complainants did not comply with its recommendation, it would not pursue its examination of the allegations any further. The Government therefore expressly requests the Committee to rule on this point and to reject the allegations once and for all, since the complainants have not presented any complaint on the subject to the Office of the Public Prosecutor. In doing so, the Committee will be acting with the objectivity and lack of prejudice that is required of it and will be complying with the terms of its own recommendation in paragraph 1358 (c) of its 363th Report (March 2012).
12. 923. Regarding the incidents that took place at FEDECAMARAS on 24 February 2008, the Government states that the Public Prosecutor’s Office has informed it that criminal charges have been brought against Crisóstomo Montoya González for public intimidation and the use of false identity papers and against Ivonne Gioconda Márquez Burgos, his accomplice, for public intimidation prejudicial to the community. The 28th Court of First Instance of the Criminal Judicial Circuit of Metropolitan Caracas agreed on 5 September 2012 to set a new date for the public hearing, following the defence’s request for postponement, and a new hearing was scheduled for 30 October 2012.
13. 924. With regard to the La Bureche farm and Eduardo Gómez Sigala, the Government confirms its previous replies on the subject and will send further details when it receives them from the specialized body responsible for the strategic agro-ecological rescue plan for the Turbio Valley. Meanwhile, it is important that the Committee on Freedom of Association understand clearly that the farm has undergone the rescue procedure laid down in the Land and Agrarian Development Act, as explained previously. The Government categorically rejects and explicitly denies the unsubstantiated allegation presented by the IOE and FEDECAMARAS that the farm is “a military training centre”.
14. 925. The Government would like the Committee to explain how a feature of country’s agrarian development policy to recover land and prevent arable areas from being used for urban development, which applies equally to all Venezuelan citizens, can constitute a violation of freedom of association? The fact that Gómez Sigala is or has been a member of FEDECAMARAS does not dispense him from complying with the law, unless it is the Committee’s contention that a trade unionists is not subject to the law. Gómez Sigala is a deputy in the National Assembly (the legislative power), which is unequivocal proof that his trade union and political activities have never been restricted. Can the Committee explain why it believes that, in Gómez Sigala’s particular case and not in others where it has been implemented, the Land and Agrarian Development Act is a violation of freedom of association. Is the Committee aware of the content of the Act, which it was previously sent?
15. 926. Regarding the cases involving lands of Egildo Luján, Vicente Brito, Rafael Marcial Garmendia and Manuel Cipriano Heredia, the Committee considers that it is impossible to discount the possibility of discrimination. The Committee requests the Government to ensure that they are granted fair compensation without delay and to initiate a frank dialogue with those affected and with FEDECAMARAS on the confiscations/rescues referred to and to keep it informed of developments. The Committee also requests the Government to send its observations on the attacks on the buildings owned by Mr Carlos Sequera Yépez, former President of FEDECAMARAS. On this point the Government states that all acquisitions of property carried out by the State for purposes of public utility or social interest confer an entitlement to due payment of fair compensation in accordance with article 115 of the Constitution. The procedure laid down stipulates that all acquisitions are preceded by a conciliatory stage for the parties to agree on a price for the property being acquired by the State. Where no agreement as possible, the matter is submitted to a competent tribunal to set a fair price.
16. 927. In the instances referred to by the Committee and in all other instances, that has been the procedure followed. Is it to be understood from the Committee’s insistence that compensation be paid “without delay” that the persons concerned renounce their right to have the fair price of the property set by a tribunal and that they accept the price fixed by the State? If that is so, the Government would appreciate being informed of its decision in writing.
17. 928. Regarding the alleged attack on buildings owned by Carlos Sequera Yépez, no such incident has been reported by the police or by any other institution in the Bolivarian Republic of Venezuela, and the Government therefore requests the Committee on Freedom of Association to provide information on the subject.
18. 929. Regarding the alleged lack of bipartite and tripartite social dialogue with FEDECAMARAS, the Committee notes with concern the IOE’s new allegations concerning the approval without any tripartite consultation of laws that affect the interests of employers and their organizations. The Committee regrets that the Government has not responded specifically to these allegations of the IOE and urges it to do so without delay. Moreover, observing Moreover, observing that the serious shortcomings in social dialogue continue to exist, the Committee reiterates its earlier recommendation. The Government states that consultations on all laws passed in the Bolivarian Republic of Venezuela are held with the entire population and with social organizations. Moreover, some of FEDECAMARAS’ members are deputies in the National Assembly where the vast majority of laws are discussed. Laws approved by the President of the Republic under the Enabling Act adopted by the National Assembly have also been preceded by public consultation. The Constitution of the Bolivarian Republic of Venezuela provides for a referendum to revoke any laws that are approved without the requisite support of the population. FEDECAMARAS, however, has boycotted many of these consultations or has limited itself to rejecting them outright in declarations to the media, often before the law has been promulgated in an effort to prevent it from being passed. The Federation’s policy of opposing any form of consultation and then saying that has not been consulted has been its strategy ever since 1998, when the Venezuelan people opposed the Government backed by the Tripartite Committee and amended labour laws without consulting the people and in defiance of the historical rights of Venezuela’s workers.
19. 930. The Government recalls that a High-level Tripartite Mission has been scheduled to visit the country for 18 months to verify that the country has the broadest possible consultation machinery for approving its law, but that the mission has twice been postponed at the request of the IOE. The most firmly established employers’ organizations in the Bolivarian Republic of Venezuela participate in all the consultation procedures on these laws, usually with the exception of FEDECAMARAS for strictly political reasons.
20. 931. The new Constitution of 1999 restored all the workers’ rights that the Tripartite Committee had been infringing between 1993 and 1998, whereupon the Committee’s members, acting as if it was a political body, started to campaign against the Constitution. They were, however, defeated, and the Constitution was approved in a referendum by the majority of the people.
21. 932. In 2002 the members of the Tripartite Committee publicly and infamously fomented a coup d’état against the constitutionally elected President and for 40 hours installed the President of FEDECAMARAS as de facto President of the Republic, but the people of the Bolivarian Republic Venezuela took to the streets and restored constitutional order.
22. 933. This is why today any mention of the Tripartite Committee of 2002 evokes painful memories in the Venezuelan people and is associated with the infringement of workers’ and human rights. It is also why the Constitution and other laws refer to a broad social dialogue that transcends the so-called tripartite dialogue restricted to an elite that is divorced from the country’s social movements; in this new social dialogue all the social actors are involved in every decision through their organizations or directly through assemblies.
23. 934. Regarding the alleged discrimination by the authorities against FEDECAMARAS and the allegations of favouritism vis-à-vis parallel organizations close to the Government and lacking in independence, the Committee reiterates the conclusions, recommendations and principles contained in its previous examination of the case and requests the Government to reply in detail to the allegations concerning the financing of parallel organizations and of favouritism vis-à-vis EMPREVEN and the “social production companies” and the discrimination against private companies. The Government states that there is no discrimination whatsoever against any employers’ organization. Ever since it was founded in 1999, FEDECAMARAS benefited from favouritism and financial and political support from the Government which excluded and grossly discriminated against other employers’ organizations in the country, some of which still exist and can testify to the fact. The Government indicates that, prior to 1999, every employer had to belong to a chamber that was affiliated to FEDECAMARAS in order to have access to State loans, contracts or purchases. This discriminatory and anti-union policy was abolished by the Constitution that was approved by referendum in 1999, since when employers are free to join any organization they wish and their affiliation or non-affiliation is not a requirement for engaging in an activity with the State.
24. 935. The Committee on Freedom of Association’s reference to an alleged financing of EMPREVEN has absolutely no basis in fact. The document to which it refers concerns resources that are granted to social production enterprises through that organization, as is quite clear from the document itself. There is no evidence whatsoever to indicate that the resources were for financing EMPREVEN.
25. 936. With regard to the IOE’s allegations concerning the sending of electronic mails between senior officials and parallel employers’ organizations, the Committee calls on the Government to verify without delay with the senior officials concerned whether or not they or their representatives sent the electronic mail attached to the IOE’s deposition. The Government states emphatically that the Committee on Freedom of Association would appear not to have read its reply on the matter; it therefore feels obliged once again to refer to paras 1323 and 1324 of the Committee’s 363th Report of March 2012 in which it is reproduced. Once more the Government rejects and repudiates the IOE’s attempts to give credence to electronic mail that emanates neither from the Government nor from any of its representatives.
26. 937. The Committee is ill advised to “call on the Government to verify without delay with the senior officials concerned whether or not they or their representatives sent the electronic mail attached to the IOE’s deposition” as the circumstances are obvious from the paragraphs of its 363rd Report referred to above, unless the Committee simply wishes to delay matters. If it wanted to act coherently, juridically, objectively and in keeping with the basic legal principle of the burden of proof, it would ask the IOE to explain where it dug up, forged or invented the so-called electronic mail involving government officials. Given that the Government has already denied the existence of any such mail, the burden of proof lies with IOE to defend its allegations.
27. 938. The Committee on Freedom of Association should realize that it is the IOE that it must ask to explain this delicate matter, since ascribing this electronic mail to the Government (which once again emphatically denies that it emanated from any government official or representative) is such a serious accusation as to have criminal implications. The case is especially serious because it seeks to incriminate one of the Government’s diplomatic representatives, who has categorically denied any knowledge of the email, which the Government can only assume emanates from the IOE. It is therefore for the IOE to provide a full explanation to the Committee and to the Government, which warns that it reserves the right to take any appropriate legal action in the matter
28. 939. Regarding the Defence of Political Sovereignty and National Self-Determination Bill, the Committee calls on the Government to ensure respect for the abovementioned principle as regards international financial assistance to workers’ and employers’ organizations so that, if the Bill does indeed apply to them, to take the necessary measures without delay to amend the Bill (or the Act) so as to guarantee explicitly the rights of employers’ and workers’ organizations to receive international financial assistance without prior authorization from the authorities for activities related to the promotion and defence of the interests of their members. The Government states that the spirit of the Bill is not to prevent any organization from receiving financing for the promotion and defence of its affiliates, since if that is what the funds are for there is no reason to hide their origin or how they were used to promote the interests of their affiliates. The purpose of the future law is to prevent the financing of political activity – or, worse still, clandestine activities – by certain organizations to the detriment of other organizations, as a form of discrimination aimed at excluding them and promoting one set of options against another. The Government states that it will take the ILO’s observations into account in drafting the future law.
29. 940. With regard to the Central Planning Commission Act, the Government recalls that, in its previous examination of this case, the Committee on Freedom of Association requested the complainant organizations to provide information on the relationship between the allegations and the violation of Conventions Nos 87 and 98 and stated that, if they did not do so by its next meeting, it would not pursue its examination of the allegations any further. The Government therefore explicitly requests the Committee to rule on the matter and, if it has not received the information it requested from the complainant organizations, that it decide not to pursue its examination of the allegations any further. It makes this request so that the Committee can maintain can maintain the uniformity, consistency and transparency of its consideration of all the cases that come before it, as it did in the face of the lack of information from the complainant in Cases Nos 2674 (paras 1160 and 1165) and 2727 (paras 1179 and 1190(d)) in its 360th Report (June 2011).
30. 941. With regard to the IOE’s communication of 20 February 2012 concerning an alleged absence of tripartite consultation in legislative matters (Security of Employment Decree, Organic Labour and Workers Act, Costs and Fair Prices Act, Penal Law on the Environment), the Government provides the following information on the allegations and exhorts the Committee not to allow government bodies be discredited without a proper reason for doing so.
31. 942. The Security of Employment Decree is a legal measure introduced under the authority conferred on the President of the Republic to protect the people, the working class and individual workers from any arbitrary action by private sector employers. Under the capitalist system unemployment is the bane of the working class and therefore used by certain big employers to trample the workers underfoot by denying them social benefits and violating all their rights and the Constitution itself. The purpose of the decree is to protect workers’ rights as a fundamental means of promoting the welfare of the people and the construction of a just and peace-loving society. The Government categorically rejects the public declarations by FEDECAMARAS spokespersons against the decree, which originated precisely in the events surrounding the coup d’état of April 2002 and the economic sabotage between December 2002 and February 2003 in which the CTV, FEDECAMARAS and other sectors of the bourgeoisie openly participated by dismissing of some 100,000 workers in the private sector. The fundamental objective of the Decree is to guarantee security of employment and to protect workers from employers who use unjustified dismissal as a means of punishing them for their political, class-conscious and revolutionary views.
32. 943. As to the new Organic Labour and Workers Act the Government states that, pursuant to Decree No. 8661 published in Official Gazette No. 39818 of 12 December 2011, the President established a the committee to draft a new Act redefining labour relations on a just and balanced basis according to guidelines that are appropriate to a social state of law and justice in which workers are the counterpart to their employer. On 1 May saw a new, revolutionary Organic Labour and Workers Act was promulgated in whose drafting a committee composed of representatives of all sectors – workers, peasants, employers, Government, the Judiciary and the Legislature – had participated with the single objective of presenting a Bill that reflects the will of the people, is an expression of community interests and respects the intangible and progressive nature of workers’ rights under the Constitution.
33. 944. The new law is a synthesis of ten years of National Assembly meetings with various sectors. In the six months preceding the law’s promulgation alone, over 19,000 proposals were submitted directly to the Committee to be studied and debated publicly. It was this constructive national debate that gave rise to the new Labour and Workers Act.
34. 945. The new Act shows that only through social dialogue is it possible to establish the laws and labour relations that our countries so desperately need, laws that fully respect human rights. Thanks to direct dialogue with the workers and their employers it leaves possible in it was possible to draft a law that was heralded by everyone even before its promulgation and has been a key element in the sustained economic development of the country and in the reduction of unemployment to under 8 per cent, thus … the gloomy forecasts of closed enterprises and high unemployment and demonstrating that guaranteeing and protecting workers’ rights are fundamental to a countries economic stability.
35. 946. The Bolivarian Republic of Venezuela is an example of the consolidation of workers’ rights and of the protection of freedom of association, collective bargaining and the right to strike, where the family is protected by extending women’s entitlement to postnatal leave to 6 months and the security of employment of a child’s parents is established until he or she is two years’ old.
36. 947. The Organic Labour and Workers Act does away with child labour, prohibits outsourcing, shortens the working week to 40 hours, guarantees employment security for all workers, grants equal workers’ rights to domestic workers and consolidates a social security system whose coverage includes non-dependent workers and which recognizes women’s work as homemakers.
37. 948. Under the Bolivarian Republic of Venezuela’s social welfare system pensions are equal to the minimum wage. Enterprises are required to provide traineeships and apprenticeships to stimulate youth employment. The fundamental rights and historic struggles of the working class that were denied by capitalism and unbridled globalization are now recognized.
38. 949. This is a far cry both from the former law, which had been imposed by closed and discriminatory form of tripartite that prevailed in 1997, and from economic models that today are causing structural crises and a marked regression of earlier working-class attainments.
39. 950. The Bolivarian Republic of Venezuela provides clear evidence that social dialogue with the social actors must be direct so that they cannot be blackmailed by self-serving group interests, that the collective welfare must be guarded against the manipulation of individual groups and that the national objective must be the advancement of workers’ rights, because labour is fundamental to the achievement of a peace-loving society.
40. 951. As the Vice-Minister of Labour stated in plenary at the 101st Session of the International Labour Conference, “this was a national, a magnificent, a constructive debate that gave rise to a revolutionary Labour and Workers Act that was penned by the workers themselves and signed by our President, Hugo Chávez. It left aside those who chose not to take part in the public debate, those proponents of old-style tripartism who claim for themselves a representativity that they no longer possess and a voice in public affairs that they do not deserve”.
41. 952. Regarding the Costs and Fair Prices Act the Government emphasizes that it is designed to favour the Venezuelan people. The law stems from the need to prevent speculation, a recurrence phenomenon in the Bolivarian Republic of Venezuela that has severely affected the price of certain products in recent years. The Act sets out to reduce speculation and the hoarding of basic commodities – the main cause of inflation – by regulating, administering, monitoring and controlling prices. The price adjustments are based on a survey of production processes, transport and storage, so as to ensure that the manufacturers do not lose money but do not speculate on the people’s basic needs either. The Act has many advantages:
    • ■ It establishes price controls for enterprises whose profits are excessive in terms of the cost structure of the goods they produce or market and the services they provide.
    • ■ It identifies economic agents that demand excessive prices for the services or products they provide.
    • ■ It establishes exchange criteria that are fair.
    • ■ It encourages fair prices by providing a mechanism for calculating real costs and expenditure.
    • ■ It promotes administrative practices that are based on equity and social justice.
    • ■ It increases economic efficiency, a decisive factor in the production of goods and services to meet people’s needs.
    • ■ It helps to raise the standard of living of the Venezuelan people.
    • ■ It facilitates the insertion of the Venezuelan economy at the regional and international level by promoting the integration of Latin America and the Caribbean and by defending the country’s economic and social interests.
    • ■ It provides the means of obtaining information on technical criteria for following up consumers’ complaints of speculation and other irregular practices that hamper their access to goods and services.
42. 953. With regard to the allegations concerning the Penal Act on the Environment, and notably articles 3, 4, 16 and 22, the Government makes the following points to demonstrate how important the Act is for the implementation of international agreements and for the life-giving environment itself:
    • ■ Article 3: criminal responsibility. In the case of environmental crimes, penal responsibility is an objective criterion based on an administrative standard. Criminal responsibility is determined by proof of an infringement of the law, not by proof of culpability.
    • ■ Article 4: criminal responsibility of juridical persons. Juridical persons are responsible for their actions or omissions if the crime entails the violation of standards or provisions contained in laws, decrees, orders, ordinances, resolutions and other general or specific administrative rules that are compulsory.
    • ■ Article 16: joint responsibility. Juridical persons are held jointly and severally responsible if they enter into an agreement whereby one carries out a specific piece of work for the benefit of or for use by the other and whose implementation results in risks or damage to the environment or to natural resources.
    • ■ Article 22: criminal investigation bodies. Officials identified in the Act to establish a Scientific, Penal and Criminal Investigation Department as well as in special laws and the regulations made under them are empowered to conduct criminal investigations into environmental crimes. They include:
      • (1) technical and administrative officials responsible for the monitoring and control activities of the ministry concerned with the environment, for all environmental issues;
      • (2) technical and administrative officials responsible for the monitoring and control activities of the ministries concerned with energy, petrol, mines, health, agriculture, housing and infrastructure, for matters coming within their purview;
      • (3) technical and administrative officials responsible for monitoring and control in areas under special administrative authority;
      • (4) competent officials of governorships and mayoral offices, within their sphere of competence.
43. 954. The Government goes on to state that the spirit, purpose and objective of the Act is to prevent the commission of crimes against the ecological equilibrium or against any species in the environment. The Act comes under the country’s criminal jurisdiction and, as such, lists certain actions that are punishable in the specific domain of the environment. The Act provides for the preservation and protection of the country’s natural resources and for the welfare of the population, which is part of the Government’s basic mandate.
44. 955. Finally, the Government states that it is completely unaware of any link between this Act and Conventions Nos 87 and 98 with which the Committee is concerned. It therefore requests the Committee to explain that link explicitly or to insist that any allegation presented by the complainant organizations be related to the purpose, mandate and purview of the Committee and be duly supported by evidence.
45. 956. In its communication dated 24 May 2013, the Government refers to the allegations in relation to the Enabling Act concerning the approval of new legislative decrees on economic and social affairs issued by the President of the Republic. The Government states that FEDECAMARAS is a civil association of entrepreneurs, the activities of which are of a political and non-trade union nature. The enabling Act was passed by the National Assembly with an overwhelming majority and was called into question by political sectors of the opposition who voted against its approval, which is their right.
46. 957. Nonetheless, for strictly political reasons, the political sectors of the opposition continued to contest this Act on the occasion of any activity or fact that occurred in its framework. For instance, in the context of the elaboration of several decrees issued by the President during the period for which he was empowered to do so, various organizations of national life interested in submitting proposals and recommendations were consulted, but political organizations from the opposition refrained from participating. FEDECAMARAS, which often rather reflects political positions than professional interests, declined to participate for the reason mentioned above. Thus, in the Government’s view, it is absurd for FEDECAMARAS to argue that it was not consulted on these issues, when in reality it refused to participate in the debate and to present proposals or recommendations.
47. 958. As for the alleged shifting of the representation of FEDECAMARAS when establishing the delegation of the Bolivarian Republic of Venezuela to the 101st annual Conference of the ILO, the Government states that, every year on the occasion of the celebration of the International Labour Conference, the Ministry for Labour and Social Security calls a meeting with various business organizations in the country to discuss and agree on the formation of the employers’ representation in the delegation attending the Conference. The Government emphasizes that it respects and promotes the democratic principles of the Bolivarian resolution. Therefore, while not negating the existence of FEDECAMARAS, it also recognizes the existence of other employers’ organizations, regardless of their political position, since they illustrate the existing political pluralism in the country. The Government has never and will never negate the existence of an employers’ organization, but it also has the obligation not to allow for the disavowal of other employers’ organizations.
48. 959. As to the allegations concerning the Presidential Decree on the Minimum Wage Increases (2012), the Government states that, during the period 1991–99, a National Tripartite Commission was set up, with the duty of, inter alia, annually revising the national minimum wage. Throughout this period, the minimum wage was raised only twice in nine years, in exchange for the elimination of other workers’ rights such as social benefits. The new Constitution approved by referendum on 15 December 1999 establishes the obligation of the State to review and fix annually the national minimum wage, i.e. through a mechanism over and above the political interests of the economic elite. In this framework, at the beginning of each year, at the request of the Government, or in some cases on their own initiative, the social, economic and trade union organizations submit their views and recommendations on the fixing of the national minimum wage. All proposals are received and analysed, whether they are presented individually by those organizations or as a result of joint meetings of several organizations. However, since the annual fixing of the minimum wage is a constitutional guarantee, it is not permitted to exchange, like on a market, the setting and value of the minimum wage against other labour rights or claims.

D. The Committee’s conclusions

1. 960. Recommendation (a). Regarding the abduction and maltreatment of the FEDECAMARAS leaders Noel Álvarez, Luis Villegas, Ernesto Villamil and Albis Muñoz (Employer member of the Governing Body of the ILO), the latter being wounded by three bullets, the Committee in its previous examination of the case deplored the offences that were committed, emphasized their seriousness and requested the Government to take all the steps within its power to arrest the other three persons involved in the abductions and wounding, and to keep it informed of developments in the investigations. The Committee noted the Government’s statement that a public hearing had been scheduled for 20 October 2011 and expressed the hope that the persons guilty of the crimes would soon be convicted and sentenced in proportion to the seriousness of the offences in order that such incidents would not be repeated and requested the Government to keep it informed in that respect. At the same time, the Committee noted with concern the IOE’s statement in its additional information that Ms Albis Muñoz, employers’ leader and one of the victims of aggression, had asserted that neither of the suspects arrested (Antonio José Silva Moyega and Jason Manjares) were the instigators of the aggression, as well as the IOE’s reservations as to the idea that the motive of the aggression was car theft
2. 961. The Committee takes note that the Government, on the one hand, states once again that from the very outset it condemned this incident in which five perpetrators were allegedly involved and, on the other hand, draws attention to a major contradiction in the Committee’s conclusions, since it says that the two persons were not recognized by Ms Muñoz but then goes on to express concern that they were not charged with attempted murder and causing this employers’ leader bodily harm. The Committee informs the Government that the abduction of the four employer’s leaders, one of whom, Albis Muñoz, received three gunshot wounds, fully justifies the Committee’s concern and that the Government has not informed it of any charges having been brought for causing bodily harm or attempted murder. Contrary to the Government’s assertion, the Committee’s expression of concern does not exceed its mandate but testifies to its critical assessment of the findings of the investigation into the wounding of an employer’s leader by bullets.
3. 962. The Committee takes note of the Government’s statement that the Public Prosecutor’s Office has informed it that two persons, Antonio José Silva Moyega and Jaror Manjares, are being held in connection with the incident and that the 11th Court of First Instance of the Criminal Judicial Circuit of Metropolitan Caracas ordered their public hearing to be held on 22 October 2012. Three other persons were mentioned in the course of the investigation as being implicated, but the Prosecutor’s Office has stated that so far no evidence has been found establishing their involvement with any degree of certainty and that one of the three died in a confrontation with the police in 2010.
4. 963. The Committee regrets that the information provided by the Government is not such as to dispel the concerns it expressed in its previous examination of the case and it therefore reiterates its previous recommendations.
5. 964. Recommendation (b). Regarding the criminal investigation ordered by the Public Prosecutor’s Office into the public declarations by the President of FEDECAMARAS, Noel Álvarez, the Government states that the Public Prosecutor’s Office recently informed it that the investigation was at a preparatory stage, which implies that the Prosecutor’s Office is making the necessary enquiries to clarify the incident and determine responsibilities, and that it is for the relevant official bodies and not for the Committee on Freedom of Association to do so. In its previous examination of the case the Committee noted that, in the context, the declarations did not in its opinion appear to contain any criminal content and should not normally have given rise to a criminal investigation. The Committee requests the Government to send its observations on the decisions handed down by the authorities (Office of the Public Prosecutor, the judicial authority) in this case.
6. 965. Regarding the alleged bomb attack on FEDECAMARAS headquarters on 24 February 2008, the Committee takes note of the Government’s statement that the Office of the Public Prosecutor has informed it that: (1) criminal charges were brought against Crisóstomo Montoya González for public intimidation and the use of false identity papers and against Ivonne Gioconda Márquez Burgos, his accomplice, for public intimidation prejudicial to the community; (2) the 28th Court of First Instance of the Criminal Judicial Circuit of Metropolitan Caracas agreed on 5 September 2012 to set a new date for the public hearing following a request by the defence for its postponement, and the new hearing was scheduled for 30 October 2012. The Committee stresses the importance of the perpetrators being sanctioned in a manner commensurate with the crimes committed and of the employers’ organization receiving compensation for the losses and damage resulting from these illegal acts. The Committee is waiting to be informed of the sentence handed down.
7. 966. Regarding the various acts of violence committed against FEDECAMARAS and its officials, the Committee again draws the attention of the Government to the fundamental principle that the rights of workers’ and employers’ organizations can be exercised only in a climate free of violence, intimidation and fear, as such situations of insecurity are incompatible with the requirements of Convention No. 87.
8. 967. Regarding the allegation concerning the employers’ leader Eduardo Gómez Sigala and the La Bureche farm, the Committee takes note that the Government confirms its earlier replies and states that it will send further details. The Committee also takes note that the Government categorically denies the allegation by the IOE and FEDECAMARAS that the farm is a military training centre. The Committee observes that the Government has not denied that this union leader has not received compensations for the confiscation of his farm. The Committee takes note of the Government’s argument that the law applies to an employers’ leader (who is, moreover, a deputy of the National Assembly) in the same way as it applies to any other citizen and that the Government wonders why the case is classified as a violation of freedom of association. The Committee recalls that it has already twice examined the substance of this allegation, refers the Government to its previous conclusions and recalls that it is competent to examine acts of discrimination against employers’ leaders. It recalls, moreover, that when it is alleged that an act is prejudicial to an employers’ or workers’ leader it applies the principle of the reversal of the burden of proof and that it is therefore the Government’s responsibility to demonstrate that the incident had nothing to do with the employers’ leader or with his activities in that capacity. The Committee continues to await the Government’s observations on the matter and requests it once again to return Eduardo Gómez Sigala’s farm to him without delay and to compensate him fully for all damages resulting from the confiscation of the farm by the authorities.
9. 968. Recommendation (k). The Committee takes note of the Government’s statement that the electronic mail communicated by the IOE was not sent by any government official or representative. As to the alleged financing of parallel organizations, favouritism towards EMPREVEN and “social production enterprises” and discrimination against private enterprises, the Government states that there has been no such discrimination against any employer’s organization whatsoever. According to the Government, the allegation of a supposed financing of EMPREVEN is completely unfounded, since the document to which the allegation refers has to do with resources granted to social production enterprises that went through EMPREVEN in its capacity as administrator, as the document itself indicates, and there is no evidence whatsoever that the resources are for funding EMPREVEN itself..
10. 969. Recommendation (i). Regarding the alleged confiscation (“rescue”, according to the Government) of the farms owned by employers’ leaders Egildo Luján, Vicente Brito, Rafael Marcial Garmendia and Manuel Cipriano Heredia, the Committee considered that it is impossible to discount the possibility of discrimination. The Committee requested the Government to ensure that they are granted fair compensation without delay and to initiate a frank dialogue with those affected and with FEDECAMARAS on the confiscations/rescues referred to and to keep it informed of developments. The Committee also requested the Government to send its observations on the attacks on the buildings owned by Carlos Sequera Yépez, former President of FEDECAMARAS.
11. 970. The Committee takes note of the Government’s statement that no reference to the alleged attack on the buildings owned by Carlos Sequera Yépez, the former President of FEDECAMARAS, has been found in any report by the authorities. The Committee also notes the Government’s statement that all Venezuelan state acquisitions of property on grounds of public utility or social interests entitle their former owner to due payment of fair compensation, as provided for in article 115 of the Constitution; the established procedure in all such acquisitions is that there should be a conciliation stage for the parties to agree on a price for the property being acquired by the State and that, where no agreement as possible, the matter is submitted to a competent tribunal to set a fair price.
12. 971. The Committee regrets that the Government does not provide any information on the frank dialogue that it had requested it to enter into with the four employers’ leaders concerned and, since the Government refers only in general terms to the procedure in cases of “rescue” without indicating whether the payment of fair compensation has been decided on, it must therefore reiterate its earlier recommendations. The Committee requests the Government once again to provide information on the subject, to engage in a frank dialogue with the interested parties and with FEDECAMARAS and to grant the interested parties fair compensation without delay.
13. 972. The Committee takes note of the allegations presented by the IOE and FEDECAMARAS regarding the composition of the Bolivarian Republic of Venezuela’s employers’ delegation to the 101th Session of the International Labour Conference, in which the Federation’s greater representativeness was challenged, as well as of the Government’s reply. The Committee informs the complainants that the composition of delegations to the Conference is the responsibility of the Credentials Committee, which has repeatedly ruled in favour of FEDECAMARAS. The Committee will therefore not examine the allegation, though it notes that it raises an issue which confirms the relevance of the other allegations in this report.
14. 973. Recommendation (j) (social dialogue). The Committee takes note of the numerous allegations presented by the IOE and FEDECAMARAS regarding the Government’s persistent rejection of consultation and social dialogue with the employers’ and workers’ representative organizations and its continuing disregard of the Committee’s recommendations. The complainant organizations have linked the lack of dialogue and the legal steps taken by the authorities to a serious increase in unemployment, economic problems and the difficulty for enterprises to conduct their business and note that between 2002 and 2012 the number of private employers dropped by 35.5 per cent and that 217,204 employers closed down.
15. 974. The complainants, in their allegations, reiterate that, despite the keenness that FEDECAMARAS has demonstrated in recent months to promote genuine social dialogue and tripartite consultation in the Bolivarian Republic of Venezuela, no such developments have taken place. In some cases the Government has merely convened at its own discretion specific private sectors other than FEDECAMARAS, which is widely recognized by the ILO as being the most representative employers’ organization in the country; in others, the consultation is a mere formality that does not allow time to reply, or else the views of the independent social partners consulted are simply ignored. According to these allegations, on yet other occasions there has either been no consultation whatsoever or else it has been held just with a few hand-picked organizations that support the Government. The complainants allege that these incidents violate the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), all ratified by the Bolivarian Republic of Venezuela, The Committee observes that the complainants point out that, since January 2011, 52 legislative decrees on crucial issues have been issued without consulting the representative employers’ organizations and without any citizens’ participation or open consultation. According to the allegations, the decrees have harmed the economy and the functioning of private enterprises, which have faced discrimination and sanctions.
16. 975. Taking into account the problems relating to the presidential decrees, whose constitutionality the complainant organizations challenge as going beyond of the mandate and issues initially agreed to (deriving from a natural disaster caused by heavy rainfall), are set out in detail in the allegations. The Committee will therefore highlight here just some of the points alleged by the complainant organizations, namely: (1) the decree on security of employment was promulgated without any consultation for the eleventh year running and now applies to all workers except those at the management level, those in positions of trust, temporary and casual workers and public officials; the new Organic Labour Act (which, to be qualified as “organic” should have been approved by a two-thirds majority in the National Assembly) was drafted by a Presidential Committee of authorities and other persons linked to the Government (for instance, a representative of FEDEINDUSTRIA but not of FEDECAMARAS or of the workers’ representative organizations). According to the allegations, the new Act places additional economic and political burdens on the private sector, introduces prison sentences other than for the administrators of state enterprises, provides for a damaging system of retroactivity of social benefits for seniority, institutes workers’ councils alongside trade unions, requires trade unions to provide the Register with a list of their members and imposes its guidelines on them, etc.; moreover, the Act does away with the National Tripartite Committee on Minimum Wages; (2) the Organic Act on Community Management of Skills, Services and Other Attributes and the Act to Promote and Regulate New Forms of Association with the State are subject to government guidelines and are designed to promote or extend the socialist model by means of widespread centralization and state control of the economy, the granting of special advantages to entrepreneurial associations with the State and discrimination against other enterprises; (3) the Legislative Decree to Determine the Fair Price of Real Estate for Housing Purposes in Cases of Emergency is designed to minimize as far as possible the amount payable to the persons expropriated by ignoring the market value and violating the right to private ownership; (4) the new presidential decree on the minimum wage, according to the allegations, introduces the concept of objective criminal responsibility to renders enterprises responsible for the actions of their dependence and gives administrative officials powers of investigation; (5) the Costs and Fair Prices Act entails a long-drawn-out and laborious process that may be applied to any product at all so as to control the chain of production, marketing and distribution and so that the Department set up for the purpose can fix the maximum prices that it considers “fair”, and provides for sanctions such as temporary occupation; (6) the Penal Act on the Environment is contrary to the very structure of penal law based on subjective as opposed to objective responsibility.
17. 976. The Committee takes note that the Government confirms its previous replies and states that the complainants’ allegations are not an extension of the complaint but a repetition. On this point the Committee wishes to point out that the new allegations refer to the lack of consultation on new presidential legislative decrees.
18. 977. In addition to the Government’s statement that FEDECAMARAS is a civil association of entrepreneurs the activities of which are of a political nature, the Committee takes note of the Government’s indication: (1) that all laws in the Bolivarian Republic of Venezuela are subject to broad consultation of the entire population and of social organizations; that some members of FEDECAMARAS are deputies in the National Assembly, where the great majority of the laws are discussed; that the population was also consulted on the laws approved by the President of the Republic under an Enabling Act adopted by the National Assembly; and that the Constitution of the Bolivarian Republic of Venezuela provides for a referendum to revoke any laws that are approved without the requisite support of the population; (2) that FEDECAMARAS chose not to take part in many of the consultations and restricted the expression of its views to outright rejection in statements it made to the media, often before the Act was published in the belief that the Federation could prevent it from being approved; FEDECAMARAS’s attitude of opposing any form of consultation and then saying that it has not been invited to take part has been its strategy since 1998 when the people of the Bolivarian Republic of Venezuela rose against a Government backed by the Tripartite Committee, which without any consultation had amended labour laws and trespassed on the historical rights of the Bolivarian Republic of Venezuela’s working class; the dominant employers’ organizations in the country take part in all consultations on legislation, in most cases with the exception of FEDECAMARAS for strictly political reasons; (3) that any mention of the Tripartite Committee of those years (from 1991 to 1999, the minimum wage was raised only twice) brings back painful memories for the Venezuelan people and is associated with the infringement of workers’ and human rights and the coup d’état of 2002; that that is why the Constitution and other laws refer to a broad social dialogue which transcends so-called tripartite dialogue that is restricted to an elite divorced from the country’s social movements, as all the social actors are involved in every decision through their organizations or directly through assemblies; (4) that, as to the allegations regarding presidential decrees issued under the Enabling Act, the Committee should not allow government bodies to be discredited without a proper reason for doing so; and (5) the Government receives and analyses the views and recommendations of social and economic organizations with respect to the minimum wage.
19. 978. Regarding the Defence of Political Sovereignty and National Self-Determination Bill calling on the Government to ensure respect for the principles governing international financial assistance to workers’ and employers’ organizations (so that, if the Bill does indeed apply to them, it can take the necessary measures without delay to amend the Bill (or the Act) and thus guarantee explicitly the rights of employers’ and workers’ organizations to receive international financial assistance for activities involving the promotion and defence of the rights of their members), the Committee takes note of the Government’s statement that it is not in the spirit of the Act to prevent any organization from receiving funding to promote and defend its members since, if that were so, there would be no reason to conceal the source of the funds and how they were used “to promote the interests of their members”; according to the Government, the object of the Bill is to prevent the financing of the political or, worse, clandestine activities of certain organizations to the detriment of others, in a discriminatory and exclusive manner that is designed to favour some options over others. The Committee notes the Government’s statement that it will take the ILO’s observations into account in drafting the future Act. The Committee hopes to be able to note progress once the legislation has been adopted.
20. 979. The Committee also takes note of the following statements by the Government:
    • (1) The purpose of the Security of Employment Decree is to protect workers’ rights as a fundamental means of promoting the welfare of the people and the construction of a just and peace-loving society, to guarantee workers’ security of employment and to protect them from employers who use unjustified dismissal as a means of punishing them for their political, class-conscious and revolutionary views.
    • (2) As to the new Organic Labour and Workers Act, the workers participated in a committee composed of representatives of all sectors – workers, peasants, employers, the Government, the Judiciary and the Legislature – with the single objective of presenting a Bill that would reflect the will of the people, be an expression of community interests and respect the intangible and progressive nature of workers’ rights under the Constitution; the new Act is a synthesis of 10 years of National Assembly meetings with various sectors, and in the six months preceding the law’s promulgation over 19,000 proposals were submitted directly to the committee to be studied and debated publicly; this was a national and constructive debate, a direct dialogue with the workers; according to the Government, the Act consolidates the fundamental rights of workers, does away with child labour, prohibits outsourcing, shortens the working week to 40 hours, guarantees employment security for all workers, grants equal workers’ rights to domestic workers and consolidates a social security system whose coverage includes non-dependent workers and which recognizes women’s work as homemakers; it requires enterprises to provide traineeships and apprenticeships to stimulate youth employment and reclaims the fundamental rights and historic struggles of the working class that were denied by capitalism and unbridled globalization.
    • (3) The purpose of the Costs and Fair Prices Act is to regulate, administer, monitor and control prices in order to put an end to speculation and hoarding, which is the main cause of inflation in Venezuela; a study was first carried out of production processes, transport and storage in order to ensure that enterprises would not lose money in manufacturing their products but that they would not speculate on the needs of the people, either; the Act introduces prior control mechanisms for enterprises whose profits are excessive in terms of the cost structure of the goods they produce or market or the services they provide; it identifies economic agents who demand excessive prices for the services or products they offer; it establishes exchange criteria that are fair; it provides the means of obtaining information on technical criteria for following up consumers’ complaints of speculation and other irregular practices that hamper their access to goods and services, etc.
    • (4) The Penal Act on the Environment is crucial to Venezuela’s compliance with international agreements and to the life-giving environment itself; it introduces the concept of objective penal responsibility for environmental crimes as well as an administrative standard whereby responsibility is determined by proof of an infringement of the law, not by proof of culpability; it renders juridical persons responsible for their actions or omissions if the crime entails the violation of standards or rules contained in administrative or legislative provisions; juridical persons are held jointly and severally responsible if they enter into an agreement whereby one carries out a specific piece of work for the benefit of or for use by the other and whose implementation results in risks or damage to the environment or to natural resources; investigation officers identified by the Scientific, Penal and Criminal Investigation Department and in special laws and the regulations made under them are empowered inter alia to conduct criminal investigations into environmental crimes; the Act provides for the preservation and protection of the country’s natural resources and for the welfare of the population; the Government explicitly requests the Committee to explain what the allegations regarding the Act have to do with its mandate. The Committee informs the Government that the complainant organizations allege that FEDECAMARAS was not consulted, that the absence of consultation on this and other laws is discriminatory and that, from its standpoint, its wording is unfair and prejudicial.
21. 980. The Committee wishes to point out that it is not called upon to rule on the substance of laws and legislative decrees that the complainant organizations claim have been adopted without FEDECAMARAS being consulted, even though it is the most representative employers’ organization, unless they contain provisions that constitute a violation of workers’ and employers’ trade union rights, discrimination between organizations or favouritism vis-à-vis certain organizations or have been drafted without any tripartite consultation. That said, the Committee emphasizes that the substance of the laws and decrees under examination do affect the interests of employers’ organizations and that the Government has not sent it a timetable of consultations with FEDECAMARAS on the numerous laws and presidential decrees adopted in recent years and it therefore does not consider the argument concerning FEDECAMARAS’ so-called self-exclusion from the consultation process to be justified. Moreover, the Committee regrets that the National Tripartite Committee on Minimum Wages has not been maintained in the new Organic Labour Act on the grounds that its functioning and the 2002 coup d’état were reprehensible in the 1990s. The Committee concludes that social dialogue with employers’ organizations has continued to deteriorate, especially as a result of enabling acts that give rise to the issuance of new presidential decrees without FEDECAMARAS being involved even though the affect the Federation’s interests and are adopted independently of the Parliament. The Committee is examining this matter, along with a number of provisions contained in the Organic Labour and Workers Act in this report, in the context of another case (Case No. 2968).
22. 981. The Committee wishes to draw the Government’s attention to the fact that it has on many occasions emphasized the importance that should be attached to full, frank, comprehensive, detailed and unfettered consultation taking place with the most representative workers’ and employers’ organizations on matters of common interest, including matters relating to working conditions and any legislation or measure relating to those conditions, as well as any draft labour legislation. The Committee has repeatedly stressed that the parties concerned must make a sufficient effort to reach, as far as possible, solutions that are acceptable to all. It has also drawn attention to the importance that consultations take place in good faith and mutual trust and respect and that the parties have sufficient time to express their views and discuss them in full with a view to reaching a suitable compromise [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1065–1088; see also, for example, the 353th Report of the Committee, Case No. 2254 (Bolivarian Republic of Venezuela), para. 1381].
23. 982. That being so, and observing the grave shortcomings in matters of social dialogue – especially with FEDECAMARAS – and its deterioration in recent years, the Committee reiterates its earlier recommendations as follows:
    • – Deeply deploring that the Government has ignored its recommendations, the Committee urges the Government to establish a high-level joint national committee in the country with the assistance of the ILO, to examine every one of the allegations and issues in this case so that the problems can be solved through direct dialogue. The Committee trusts that the Government will not postpone the adoption of the necessary measures any further and urges the Government to keep it informed in this regard.
    • – The Committee expects that a forum for social dialogue will be established in accordance with the principles of the ILO, with a tripartite composition that duly respects the representativeness of workers’ and employers’ organizations. The Committee requests the Government to keep it informed in this regard and invites it to request technical assistance from the ILO. The Committee also requests the Government once again to convene the tripartite commission on minimum wages provided for in the Organic Labour Act.
    • – Observing that there are still no structured bodies for tripartite social dialogue, the Committee emphasizes once more the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment be preceded by detailed consultations with the most representative independent workers’ and employers’ organizations. The Committee once again requests the Government to ensure that any legislation concerning labour, social and economic issues adopted in the context of the Enabling Act be first subjected to genuine, in-depth consultations with the most representative independent employers’ and workers’ organizations, while endeavouring to find shared solutions wherever possible.
    • – The Committee requests the Government to keep it informed with regard to social dialogue and any bipartite or tripartite consultations in sectors other than food and agriculture, and also with regard to social dialogue with FEDECAMARAS and its regional structures in connection with the various branches of activity, the formulation of economic and social policy and the drafting of laws that affect the interests of the employers and their organizations.
    • – The Committee requests the Government to ensure that as part of its policy of inclusive dialogue (including within the Legislative Assembly), FEDECAMARAS is duly consulted in the course of any legislative debate that may affect employers’ interests, in a manner commensurate with its level of representativeness.
      • The Committee deeply deplores that the Government has once again ignored these recommendation despite the fact that the Committee has been insisting on them for years.
24. 983. With regard to its earlier recommendations (g), (h) and (m) requesting the complainant organizations for information on the Planning Commission Act, the allegations regarding the livestock farmer Franklin Brito and the expropriation of Agroisleña SA, Owen – Illinois and the Orinoco steel plant, the Committee observes that the Government points out that the requested information has not been received and, invoking the principle of consistency with other cases, requests the Committee to consider that it has concluded its examination of the allegations. The Committee will not pursue its examination of these allegations any further.
25. 984. Finally, the Committee takes note of the Government’s statement that the High-level Tripartite Mission approved in March 2011, which the Government agreed could look into the issues that were still pending with regard to Case No. 2254, has twice been postponed for reasons outside the Government’s control. The Committee is strongly of the view that the Mission should take place in the near future and requests the Office to contact the Government to that effect. The Committee considers that the Mission should be able to make a contribution to resolving the problems raised.